Ganassin v Ulan Coal Mines Limited

[2020] NSWDC 652

District Court

New South Wales

Medium Neutral Citation:

Ganassin v Ulan Coal Mines Limited [2020] NSWDC 652

Hearing dates:

10-12, 15, 17 and 18 June 2020
Plaintiff’s written submissions 18 June 2020 and 25 September 2020
Defendant’s written submissions 16 June 2020 and 28 September 2020

Decision date:

27 October 2020

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

I make the following orders:-

(1) There will be a verdict and judgment in favour of the Plaintiff in an amount to be calculated.

(2) I defer entry of final orders to enable the parties to confer, check my calculations and advise of any outstanding figures, with a view to presenting proposed consent orders that accord with this judgment and any agreement as to costs within 14 days.

(3) Parties have liberty to lodge with my Associate in Chambers any agreed Consent Orders.

(4) In the event of any disagreement, the parties are to:

(a) Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days.

(b) Submit to my Associate within the period referred to in (4)(a) above their proposed orders, and any documents and written submissions proposed to be relied upon.

Catchwords:

WORK INJURY DAMAGES – Where Plaintiff works in a mine for the Defendant – Plaintiff encounters a fire whilst working underground in the mine and extinguishes the fire – Whether breach of statutory duty – Whether Defendant had duty of care to prevent psychological injury – Whether psychological injury was foreseeable – Whether the fire was caused as a result of the Defendant’s negligence – Whether injuries caused by the Plaintiff’s method for extinguishing the fire and failing to don self-rescuer – Whether the Defendant failed to properly and adequately train the Plaintiff – Whether the Plaintiff acted in the “agony of the moment”

DAMAGES – Whether the Plaintiff ceased work as a result of the injuries sustained – Whether the Plaintiff suffered and developed PTSD as a result of the Defendant’s negligence – Where Plaintiff has a history of depression prior to the incident – Whether injuries caused by the Plaintiff’s dealing with the insurer – Application of s 151G – Vicissitudes of life – 15% reduction for past economic loss – 20% reduction for future economic loss

Legislation Cited:

Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 3

Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW), clauses 9, 23, 44A, 100

Work Health and Safety (Mines) Act 2013 (NSW)

Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schedule 4

Workers Compensation Act 1987 (NSW) ss 149, 151G, 151H, Schedule 6

Cases Cited:

Abdallah v Newton (1998) 28 MVR 364 at 365-366 Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121

Brighten v Trainao [2019] NSWCA 168

Brisbane Youth Service Inc v Beven [2017] QCA 211; (2017) 270 IR 304

Byrnes v Snare (1986) 4 MVR 97

Commonwealth v Mclean (1996) 41 NSWLR 389

Davies v Whitehaven Coal Mining Limited [2020] NSWCA 219

Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168

Fox v Wood (1981) 148 CLR 438

H v State of New South Wales [2009] NSWDC 193

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25

Kember v Thackrah [2000] WASCA 198

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15

Leishman v Thomas; Hobbs (3rd Party) (1957) 75 WN (NSW) 173

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

March v E and MH Stramare Pty Ltd (1991) 171 CLR 506

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471

Nestle Australia Ltd v McDougall [1998] NSWCA 158

O'Connor v Cmr for Government Transport (1958) 100 CLR 225

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

Sangha v Baxter (2009) 52 MVR 492

SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56

Skea v NRMA Insurance Ltd [2005] ACTCA 9

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Stuart v Walsh [2012] NSWCA 186

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35

The Bywell Castle (1878) 4 PD 219

Turner v South Australia (1982) 56 ALJR 839

Warth v Lafsky [2014] NSWCA 94

Webb v Edwards [2018] NSWDC 67

Wingrove & Co Pty Ltd v Sheehy (1961) 35 ALJR 313

Texts Cited:

Sapideen, Carolyn, Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011)

Category:

Principal judgment

Parties:

Roberto Ganassin (Plaintiff)
Ulan Coal Mines Limited (Defendant)

Representation:

Counsel:
Mr R O’Keefe (Plaintiff)
Mr L King SC (Defendant)

Solicitors:
Nikolovski Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2018/99802

Publication restriction:

Nil

table of contents

BREACH OF STATUTORY DUTY - paragraph 12

EVIDENCE

Background

Description of Mine - paragraph 22

Equipment - paragraph 25

Chain of Command - paragraph 28

5 August 2016

The Fire - paragraph 30

Arrival of Deputies - paragraph 42

The Plaintiff’s Training and Approach to Fire on 5 August 2016

Self-Rescuer - paragraph 51

Lanyard - paragraph 69

Approach on the Inbye Side - paragraph 73

Aftermath

The Plaintiff - paragraph 76

Ambulance - paragraph 80

Gulgong Multi-Purpose Service - paragraph 82

Mudgee Health Service - paragraph 86

Dr Dion Casey - paragraph 87

Return to Work - paragraph 91

Reporting of Incident

Notification of Incident and Injury under the Work Health and Safety (Mines) Act 2013 (NSW) - paragraph 101

Notice to Ulan from Mine Safety Operations - paragraph 105

Incident Cause Analysis Method Report (ICAM) - paragraph 107

Expert Liability Evidence

Evidence of Steve Williams and Dr Bruce Hebblewhite - paragraph 111

24 May 2019 Report of Steve Williams - paragraph 113

10 November 2019 Report of Dr Bruce Hebblewhite - paragraph 120

19 May 2020 Report of Mr Williams - paragraph 128

2 June 2020 Report of Dr Hebblewhite - paragraph 132

Joint Evidence Session Dr Bruce Hebblewhite and Steve Williams - paragraph 137

NEGLIGENCE-FINDINGS

Assessment of the Plaintiff’s Credit - paragraph 151

Nature of the Incident and the Immediate Aftermath - paragraph 162

Duty of Care and Foreseeability - paragraph 174

Causation - paragraph 197

Contributory Negligence

Defendant’s Submissions - paragraph 211

Plaintiff’s Submissions - paragraph 218

Consideration - paragraph 223

DAMAGES

Work - paragraph 236

Background - paragraph 237

Work Rosters - paragraph 243

OPL Mining Pty Ltd - paragraph 268

The Plaintiff Ceases Work - paragraph 270

Submissions - paragraph 279

Consideration - paragraph 286

Work with Cousin - paragraph 296

Consideration - paragraph 306

Motivation to Return to Work - paragraph 308

Submissions - paragraph 318

Consideration - paragraph 320

Injuries - paragraph 325

Pre-Incident Health - paragraph 337

Coughing - paragraph 338

Depression - paragraph 342

Carcinoid Syndrome - paragraph 372

Diarrhoea - paragraph 374

Pericarditis - paragraph 379

Melissa Ganassin - paragraph 381

Dr Gary Butler - paragraph 388

Referral to Dr Moses - paragraph 401

Professor David H. Bryant - paragraph 407

Dr Jonathon Osborne - paragraph 414

Dr Wendy Roberts - paragraph 420

14 August 2020 Report - paragraph 421

5 February 2019 Report - paragraph 427

MMPI-2 - paragraph 430

5 June 2020 Report - paragraph 432

Joint Report of Dr Wendy Roberts and Dr Jonathon Osborne - paragraph 435

Joint Evidence Session Dr Wendy Roberts and Dr Jonathon Osborne - paragraph 457

Dr John Roberts - paragraph 487

8 December 2016 - paragraph 488

18 January 2017 Report - paragraph 502

4 October 2019 Reports - paragraph 504

Dr Stephen Allnutt - paragraph 516

27 March 2017 Report - paragraph 517

21 December 2018 Report - paragraph 528

26 May 2020 Report - paragraph 533

16 June 2020 Report - paragraph 542

Joint Report Dr John Roberts and Dr Stephen Allnutt  - paragraph 547

Joint Evidence Session Dr Allnutt and Dr John Roberts - paragraph 562

Failure to Seek Treatment - paragraph 594

Consideration

Findings – Smoke Inhalation Injury - paragraph 595

Findings – Psychological Injury - paragraph 611

Dealings with CMI and the Defendant - paragraph 648

CALCULATION OF DAMAGES

Non-Economic Loss - paragraph 659

Past Out of Pocket Expenses - paragraph 665

Future treatment - paragraph 669

Capacity for Employment - paragraph 680

ORDERS - paragraph 699

Judgment

1. The Plaintiff was employed as an underground coal miner by the Defendant at the Ulan Coal Mine on 6 August 2016 when he detected a fire and sought to extinguish it over a period said to be around twenty minutes. He brings proceedings for damages in respect of injuries said to have arisen from the subject incident, being smoke inhalation and post-traumatic stress disorder (PTSD) and/or aggravation of a major depressive disorder.

2. In the Plaintiff’s case oral evidence was given by himself and his wife Ms Melissa Ganassin and his general practitioner (GP) Dr Gary Bulter.

3. The Defendant called two of its employees being Mr Anthony Chapman and Mr Aaron Wilson. Mr Chapman commenced employment as a multi skilled underground operator in about 2006 and obtained his “Deputy’s ticket” in 2011/2012. [1] On 5 August 2016 he was one of the Deputies on duty that attended the aftermath of the fire. Mr Chapman stated that he first came to know the Plaintiff when he started at the colliery and went through his training and subsequently when he ended up in the development panel where he was the Deputy. In cross-examination Mr Chapman accepted that he managed the Plaintiff for four or five months when he started back about June 2012 and didn’t work again with him until he came back on his crew in about February 2016, when the Plaintiff was forced back to midweek nightshift from a previous roster that involved the Plaintiff working four days on and five off of ten hour shifts. [2] Whilst working on the night shift, the Plaintiff came to know and converse with Mr Wilson who worked as a fitter. The details of those conversations are described later in these reasons.

   1. See T 223.25-.7 and Exhibit 3 at [11].

   2. T 230.15-.24.

4. A joint evidence session was held involving Mr Steve Williams, a consultant workplace health and safety professional qualified on behalf of the Plaintiff, and Dr Bruce Hebblewhite, consultant mining engineer qualified on behalf of the Defendant.

5. A joint evidence session was held involving psychologists Dr Jonathon Osborne, being the Plaintiff’s treating psychologist, and Dr Wendy Roberts who was qualified by the Defendant.

6. A further joint evidence session was also held involving psychiatrists Dr Stephen Allnutt, qualified on behalf of the Plaintiff, and Dr John Roberts qualified on behalf of the Defendant.

7. The Plaintiff’s trainer on induction Mr Tony Craddock was not able to be called it being accepted that he was now deceased. [3]

   3. T 213.47-.48.

8. By grant of leave the Plaintiff relied on an Amended Statement of Claim filed in Court on 10 June 2020 [4] and the Defendant on an Amended Defence filed on 11 June 2010. [5]

   4. T 02.41-.43.

   5. T 63.15.

9. An agreed Statement of Issues was handed up in Court on 11 June 2010. [6] That identified the relevant issues as follows:-

   6. T 62.15-.16.

1. Was the Defendant negligent with respect to:

1. Faulty maintenance and the conveyor system?

2. Training and instructions of the Plaintiff in relation to dealing with smoke/fire underground?

2. Did the Defendant’s negligence, if any, with respect to maintenance of the conveyor system cause the fire?

3. Did the fire cause (in the legal sense) the Plaintiff’s alleged injuries?

4. Did the Defendant’s negligence, if any, with respect to training and instructions of the Plaintiff in relation to dealing with smoke/fire underground cause or contribute to his injuries?

5. Was the Plaintiff’ conduct the cause of his alleged injuries (and not any fault on the part of the Defendant) in:-

1. Failing to follow training and instruction and apply common sense?

2. Approaching the fire from inbye?

3. Failing to use his self-rescuer?

4. Failing to position himself appropriately combat the fire?

5. Failing to turn of the conveyor belt?

6. Should the Plaintiff’s conduct be adjudged in accordance with the legal principle known as the agony of the moment?

7. If the Defendant was negligent, was the Plaintiff guilty of contributory negligence in the respects set out in 5 (i)-(v) above? If so, what degree of blame is to be apportioned to the Plaintiff?

8. Did the Plaintiff suffer any injury as alleged and if so, what is the nature and extent and does it pass the threshold for recovery of damages provided for in the Workers’ Compensation Act 1987 (NSW) (the 1987 Act), s 151G and 151H?

9. In the event the Plaintiff is entitled to damages, what is the amount thereof in respect of:

1. Non-economic loss?

2. Economic loss (past and future)?

3. Out of Pocket expenses (past and future)?

10. At the time the Statement of Issues was handed up I was informed that (5)(i)-(v) would be the specific particulars of conduct that is to be relied upon to support the general allegation made in [3] and the allegations of contributory negligence in [17] of the Amended Defence. [7] In my view, 5(i) above effectively embraces the remaining particulars. [8]

    7. T 62.32-63.07.

    8. See T 62.42-63.07.

11. Although judgment in this matter was reserved on 19 June 2020, on 23 September 2020 I sought supplementary submissions through my Associate from the parties as to matters going to the calculation of damages. These were supplied by the Plaintiff on 25 September 2020 and the Defendant on 28 September 2020.

BREACH OF STATUTORY DUTY

12. The Amended Statement of Claim alleged breaches of statutory duties contained in clauses 23 and 44A of the Work Health and Safety (Mines) Regulation 2014 (NSW). [9] This is presumably a reference to the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) (the 2014 Regulation).

    9. See Amended Statement of Claim at [13]-[17C].

13. In written submissions the Plaintiff foreshadowed amending its Statement of Claim further to allege breach of clause 100 in addition to advancing arguments asserting breaches clauses 9, 23 and 44A(2)(d) of the 2014 Regulation. [10]

    10. See MFI 5, Plaintiff’s Written Submissions at [203]-[205].

14. The Statement of Issues was presented on Day 2 of the trial and did not identify any allegation of breach of statutory duty contained in the Amended Statement of Claim or otherwise.

15. On Day 7 of the trial counsel for the Defendant, having commenced final address the previous day, stated that there was a matter he wished to raise that he and Counsel for the Plaintiff had agreed to. [11] At that stage the Defendant’s Counsel indicated that he had not reviewed the Plaintiff’s written submissions. A short adjournment followed to allow that to occur. Thereafter the Defendant’s Counsel stated:-

…The only other points I wanted to make were, I mentioned before your Honour went off the bench following the motion that there was something that Mr O'Keefe and I had discussed and agreed.  Mr O'Keefe was concerned that the statement of issues, when he reviewed it, didn't specifically mention an allegation of breach of statutory duty, in addition to negligence or breach of duty of care.  I've got absolutely no objection to his raising that or even seeking to amend the statement of issues, we were well and truly on notice of it, and I think again he and I are on the same page, that even a statutory duty is only a duty of reasonable care, that's what the High Court said in Dederer and the Roads and Traffic Authority. [12]

11. T 411.19-.21.

12. T 412.29-.39.

16. Beyond this, no specific information was given as to the position of the Defendant in relation to any proposed amendment.

17. What followed was that despite the Defendant indicating that it would have no objection to the Plaintiff amending the Statement of Issues ^[13] the Plaintiff did not do so. Nor did the Plaintiff seek to amend the further Amended Statement of Claim.

    13. T 412.35-.36.

18. Breach of Clause 9 of the 2014 Regulation was neither pleaded nor particularised. The Plaintiff did not seek to explain how that clause or clause 23 (failing to identify principal hazards) is at the level of specificity that can give rise to a private cause of action.

19. In respect of clause 44A(2)(d) of the 2014 Regulation, the Plaintiff’s assertion was in respect of a failure to ensure that each belt conveyor in operation was inspected by a competent person gave rise to a breach of statutory duty. It was submitted that the previous legislative provisions conferred such private rights of action and the 2014 Regulation was for the protection of the health and safety of coal miners. [14] No further details were provided. Nor did the Plaintiff did not particularise or explain the aspects of the evidence which substantiated this asserted breach. Clause 44A(2)(d) requires inspection by a competent person at intervals specified. The clause further provides that the mine operator is to have regard to all matters relevant to risk associated with the operation of belt conveyors. The evidence in the ICAM report was that the shift inspections and fortnightly thermographic monitoring inspections were carried out but that they did not detect the failing hold down idler. [15]

    14. MFI 5, Plaintiff’s Written Submissions at [207].

    15. Exhibit D1, Tab 22 at 364.

20. Clause 100 was specified to have been breached in Clause 100(3), (4) and (5). In this respect the Plaintiff simply referred to the existence of evidence to support its breach and stated that the provision “may” create a private right for the benefit of employees. [16]

    16. MFI 5, Plaintiff’s Written Submissions at [206].

21. In light of the Plaintiff’s failure to seek any amendments, advance its own proposal and elaborate on what was described as an agreed position as to the content of a breach, I can only assume that this issue was not viewed as advancing the Plaintiff’s position any further. In the circumstances it is unnecessary to address it.

EVIDENCE

Background

Description of Mine

22. The Plaintiff described the mine as an underground thermal mine which had one longwall which was a 400 metre “fat face”. He stated that there was an entry to the mine comprising a drift of about 400 metres down and about 240- 300 metres underground. He described the “drift” as the actual portal that they drive in into the mine and where they would enter and exit the pit. The Plaintiff described that there was a side feed off the drift that could be used if machines for some reason had broken down in the main drift so they could come out a side way. The Plaintiff recalled that the dimensions of the passages were 5.4 wide by 3.4 high. [17]

    17. T 19.10-.49.

23. The Plaintiff described the process of coal extraction as involving a main belt with feeder belts that would come from production panels. He stated that as the production panels were extracting the coal it would get placed onto a cart, the cart takes it and puts on a mini belt and that feeds to the feeder belt which feeds the main belt. Each of these belts was described as mechanised conveyor belts made of a steel material. The belt road was described as parallel to the main travelling roads. [18] In addition there were what was described as “cut-throughs” which were tunnels that intercepted with the drift and the belt road to provide a means of access. [19]

    18. T 20.04-.41.

    19. T 21.14-.20.

24. The Plaintiff marked the following diagram from page 896 of Exhibit D1, indicating yellow for the drift road, green for the belt road and orange for the cut-throughs:- [20]

20. T 21.30-22.31; Exhibit B.

Equipment

25. As part of his work the Plaintiff described being given a hard hat with a pennant cap light with a battery attached, reflective clothing, PPE, gloves, goggles, glasses and steel cap boots that came up to the knees. There were also ear muffs that could be placed on the hard hat and gumboots with ankle support were optional. [21] He also had a dust mask for use working in a dusty environment or on a machine. [22]

    21. T 22.37-.50.

    22. T 33.45-.50.

26. In order to facilitate communication, the Plaintiff stated that there were fixed phones wired to the surface which were along the travelling road which would be a couple of hundred meters apart. There was also a phone in the crib room for the Deputies to report. The phones enabled communication with the control room officer or someone else that they had the direct number for who they were working for. In addition the Plaintiff stated that there were DACs [23] along the belts that acted as an intercom with the control room and were a backup if phone contact were lost. [24] Apart from these means, the Plaintiff stated that if you wished to talk to another miner there was a system whereby they would wave their cap light in a circle to signal them to take off their ear muffs and talk in their ear. [25]

    23. It appears DAC is a commonly used term to refer to these intercoms. It was not defined throughout the proceedings.

    24. T 23.15-24.10.

    25. T 23.08-.17.

25. The Plaintiff stated that they also had a self-rescuer described as a SSR-95 [26] which they carried on the side on their tool belt so it was “on you all the time”. [27]

    26. Also referred to as a “self-rescuer”

    27. T 34.01-.05.

Chain of Command

28. The Plaintiff described that depending on the production there would be a number of Deputies who he described as being the statutory official in charge of the men working in a group. [28]

    28. T 24.32-.50.

29. The Plaintiff stated that the control room oversees the whole pit and answers calls from people going from one part of the mine to the other. He stated that there were limits on the machines in a panel due to the monoxide they produced and that they needed permission to go from one section to another. There was one operator per shift in the control room and that operator had the capacity to start or stop any of the machinery inside the mine as well as stop the belts used to extract the coal from the coal face. [29]

5 August 2016

29. T 25.16-.41.

The Fire

30. On 5 August 2016 the Plaintiff stated that he was working on nightshift starting on the 4^th and continuing into the following morning. On that occasion he was tasked to go underground and retrieve “loop take ups” which were part of the belt structure and bring them to the surface. [30] The Plaintiff stated that he was on his second run back to pick up another loop. He stated that he had it on his machine and was heading back onto the main travelling road to head for surface. [31] Whilst heading outbye at 3:30 am, the Plaintiff was driving his machine when he noticed that it was getting hazy just past the diesel refill station in North 2. [32] He stopped, pulled his goggles and facemask to the side and then continued forward for a few cut-through is the West 3 under belt. He stopped again on the travelling road as he could see what he thought was smoke. [33] At this point the Plaintiff said that he was petrified. He got out of his machine and ran down the underpass and stood there and looked up and described the smoke as being thick on the roof. He stated that he then pulled his mask to the side and could smell and taste it. The Plaintiff said that he then ran back to his machine and proceeded to travel as fast as he could looking for a phone. [34]

    30. T 52.27-.36.

    31. T 52.42-.46.

    32. T 53.24-.28.

    33. T 53.33-54.05.

    34. T 54.07-.15.

31. When the Plaintiff saw a phone he said that he rang the control room and spoke with an officer named Grant. The Plaintiff later identified this person as a Grant Zwitlowski. [35] He told him “Grant, it’s Robert here. There’s smoke underground. Have you got any alarms going off in the control room? Can you help me?” [36] He stated that Grant replied “I haven’t” and then stated “wait a minute, let me have a look. I haven’t got any smoke alarms. I’ve got a hot role bearing alarm, two cut-throughs outbye from where you are on the phone.” The Plaintiff said that he responded “I’ll get back to my machine and go and have a look to see what’s going on and then I’ll call you back.” [37] To that the Plaintiff recounted that Grant responded “Get going, go.” [38]

    35. T 72.48-73.03.

    36. T 54.17-.19.

    37. T 54.21-.26.

    38. T 54.29.

32. The Plaintiff then said that he went back on his machine and drove through the first cut-through and could see the smoke “very heavy” in the belt road. [39] This was 40 to 50 m away from where it was. Plaintiff said that he then stopped his machine because he had come to the second cut-through. There was no one else there him and he was by himself. He proceeded to where the smoke was and stated that he was petrified, panicking and scared. [40] He stated that he then ran towards the smoke which was on the belt road. He noticed that the conveyors were turning and there was a lot of noise. The Plaintiff stated that he was short of breath, his heart was pounding, his legs were wobbling, his eyes were stinging and he kept saying to himself that if “it was a fire I’ve got 10 minutes, how long has it been going for?” He then took a breath and went into the direction of the smoke thinking that it must be there. He stated that he “got down low, as close to the floor without crawling”, “was walking like a duck” and out in front he could see what he thought was a light. [41] At this point the Plaintiff said he was maybe 15 to 20m away from the light. [42]

    39. T 54.28-.30.

    40. T 54.32-.41.

    41. T 54.43-55.07.

    42. T 55.10.

33. In cross-examination the Plaintiff conceded that the light turned out to be the fire and that he only saw it when he got down low. [43] He did not accept that the source of the fire was in the roller bearings beneath the conveyor, stating that the roller bearing on the main drive head was near the main roll and had collapsed. [44]

    43. T 151.09-.15.

    44. T 151.21-.24.

34. Believing that the conveyor was on fire he then turned around and proceeded to a phone which he described as being approximately 20m away. He then rang the emergency number to the control room and spoke to Grant and said to him “I need help, there’s a fire. Please send help.” To this the Plaintiff at first said that Grant said “I’ll get help, I’ll get help. Get going, go and fight it, get going.” [45] Subsequently the Plaintiff stated that Grant did not say “Go and fight it.” [46]

    45. T 55.29-.32.

    46. T 73.05-.17.

35. In cross-examination, the Plaintiff was read the account he gave to his liability expert Mr Williams, which stated:-

He changed positions several times to try and determine the heart of the fire. After a short period, he realised that both sides of a set of conveyor roller bearings were the likely cause of the fire. He attempted to secure the initial water hose to a handrail in order to direct it to one roller bearing and housing, to free himself up to retrieve a second water hose to aim at the other side roller bearing, which he manage to do with some success. [47]

47. Exhibit D1, Tab 20 at 270.

36. The Plaintiff said that he didn’t remember saying that and it was not what happened. [48] He stated that he saw the fire closest to him and at that point he did not know what the problem was. All he knew was a fire on the side closest to him and he had a half-inch hose trying to put it out. [49] Later the Plaintiff stated that he could see the fire on the idle roll at the front of him which was in the immediate vicinity of the front roller bearing as well as on the surface. [50] The Plaintiff accepted that the roller bearing was a moving piece of machinery and had the potential for friction. [51]

    48. T 152.14-.22.

    49. T 152.43-153.1

    50. T 153.14-.32.

    51. T 153.38-.42.

37. Following the second call to the control room the Plaintiff stated that he made his way from the phone through the smoke into where the air was better and where his machine was parked. He stated that he sprinted as fast as he could to get back to his machine out onto the travel road so that he could come back around. He was then on the side of the fire and was looking at it. He tried to grab a hose and turn it on and it ended up being an air hose that was on the floor. He then turned around and on the inbye rib there was what was described as a “dropper” and he turned it on. At the end of the dropper was a half inch hose but it was heading towards the travel road and was clipped onto the rib. He stated there were bits of wire tied up. He unclipped them and was trying to put the clips in his pocket at the same time. He stated that he then got the hose off and fell to the floor and was like “a snake whipping around”. He was able to pull it back on him, at which point his eyes were burning, he had a dry throat and was coughing. He stated he was trying to pull himself down and so he applied water. He then proceeded to apply water to the fire and could see the fire. At the same time he grabbed a pen out of his pocket and wrote in his left hand “Fire, water 335”. He stated that he did this because he thought he wasn’t going to get out of there and he thought that if “something happens they’re going to find that, at least they’re going to know.” [52]

    52. T 68.45-69.29.

38. The Plaintiff stated that he had water on the fire for a few minutes and the second he took the water off it flared straight up. He stated that he wasn’t in a good position to get water right on it. He stated that there was a drive head. He was screaming and there were embers flying and the idle roll at the front was what was on fire. He then saw a catwalk to the side of the main drive head roll. Accordingly he got a hose up underneath the floor plates and he checked for open floor and fed it up and around and pulled down and went out by. He stated he came up the stairs and pulled the hose up, got down and got the hose off the floor. He asserted that he went as far forward as he could to get water onto the fire and could feel a lot of heat on his left hand side. According to his evidence it was the drive head bearing that had exploded. [53] This was described to be the main roll at the end of the conveyer where the coal comes and drops off and it goes on to the next conveyor. He stated that the bearing is what holds the roll in position and lets it turn freely and holds the belt centre. [54]

    53. T 69.45-70.05.

    54. T 70.07-.12.

39. The Plaintiff stated that he knew that production on the longwall had not stopped and it was still cutting. At that point he was standing against a rib and he had a drive head next to him and in his mind he had nowhere to go, however, he had to be there in order to put water on the fire. He stated that he was applying water to the bearing on an ongoing basis. He stated that he used some of the straps that he had put in his pocket to try and clip the hose up onto the handrail pointed towards the fire. He found a hose as he was coming up the stairs on the rig and he was applying that to the actual bearing housing and got himself back as far as he could to get water onto it. At that point he had his arm over the handrail and was leaning back on the chain to hold himself up. After a few minutes, he stated that he went forward again to check the first hose but it wasn’t spraying in the direction of the fire so the fire had fled back up. He stated he tried to get as much slack as he could and configurator it around the handrails to hold it pointing onto the fire. He then went back to the roll and applied water to it for maybe 15 minutes. During the 15 minutes the Plaintiff was fighting the fire, he stated that he was on the clear air side and the bulk of the smoke was in front of him. [55]

    55. T 70.14-71.41.

40. In cross-examination it was put to the Plaintiff whether or not he felt frightened or anxious, he was able to follow through his training. He accepted this was so to the best of his ability. [56] He accepted that he went back to where the fire was with the intention of fighting the fire, and that he did it alone, notwithstanding the fact that he stated he was absolutely petrified. [57] The Plaintiff accepted that he assessed the fire as one that he could cope with. He rejected the suggestion that it wasn’t a substantial fire. [58] It was put to him that the fire was localised between two cut-throughs and down low on the machinery. The Plaintiff did not accept this, instead stating that the fire was up high. [59] It was put to the Plaintiff that when he returned back down for the investigation the damage was only a metre up from floor level. The Plaintiff stated that he wasn’t shown this nor did he see it. It was put to him that the length of the fire damage was only a matter of metres. He stated that he wasn’t shown that. [60]

    56. T 134.14-.16.

    57. T 134.27-.44.

    58. T 135.39-.44.

    59. T 135.46-.48

    60. T 136.04-.12

41. When asked in cross-examination as to the length of time it took once he started fighting the fire to bring it under control, the Plaintiff stated that he would be guessing 15 minutes. [61] When asked how long he was in smoke he stated 3 to 4 minutes in heavy smoke. He could not recall how long overall. [62] Specifically, he could not recall subsequently telling Gulgong Medical Centre that it was 10 minutes, however, he accepted that whatever he told the Centre would be his best estimate and truthful. [63]

    61. T 137.01-.03.

    62. T 137.05-.15.

    63. T 137.17-.46.

Arrival of Deputies

42. Thereafter the Plaintiff noticed two cap lamps walking towards him. He then observed the two Deputies come from the travelling road. One of them came up to him on the platform. [64] At that point he had the front fire out and there was just a lot of steam that had come in off the main drive head roll. He stated that at that point the conveyor was still producing coal. [65] The Plaintiff stated that Mr Chapman [66] asked him where the fire was and he was trying to tell him but found it hard to talk as his throat was burning. [67] Subsequently he stated that he was conveyed to the surface by the under manager in a Specialised Man Vehicle (SMV). [68]

    64. T 71.23-.48.

    65. T 71.50-72.06.

    66. Also referred to as Anthony Chapman.

    67. T 73.19-.22.

    68. T 73.33-.35.

43. In cross-examination the Plaintiff accepted that the first person to come and join him was Mr Chapman. [69] It was put to the Plaintiff that the first thing that Mr Chapman did when he got up next to him was to ask how he was. The Plaintiff rejected this stating that the first thing said was “Where’s the fire, where is it, are you okay?” [70] The Plaintiff rejected the suggestion that he responded that he was okay. [71]

    69. T 149.49-.150.01.

    70. T 150.03-.06.

    71. T 150.08-.10.

44. The Plaintiff conceded that he approached the fire through smoke on the inbye side. He said he did this because he was told the fire was in that cut-through. He said he went to that cut-through and that he turned around as the bulk of the smoke was coming towards him. [72]

    72. T 74.14-.20.

45. Mr Chapman accepted that the Plaintiff was a good worker, describing him as a safe operator that carried out all tasks planned for him without any concern or hassles. [73] He further acknowledged that he never had any reason to performance manage or discipline the Plaintiff for work-related issues or other matters on crew in the time he managed him. [74]

    73. Exhibit 3 at [19].

    74. T 230.49-231.04.

46. Mr Chapman stated that he attended the scene of the underground fire in early August 2016 as he was the “outbye Deputy” and the Plaintiff was in the “outbye crew” and under his supervision. His partner was Mr Lionel Hayes who he described as in charge of the shift. [75] Mr Chapman described that he and Mr Hayes were carrying out inspections. [76] In evidence, he stated that he and his partner were coming out of the number 3 mine shaft and could smell a burning smell. At that point they had not completed out inspection of the 5009 belt. [77] After speaking with an electrician Josh Amos they tried to call the control room operator and the phone was engaged. [78]

    75. Exhibit 3 at [14].

    76. Exhibit 3 at [26].

    77. Exhibit 3 at [26]-[28].

    78. T 225.07-.13.

47. Thereafter, Mr Chapman said he and his partner jumped into a SMV and continued to make their way outbye to the area of concern. He said he stopped at 47 cut-through and then made contact with the control room operator and was told that the incident was at the 5009 tripper which was the second drive head in the 5009 belt. They then made their way to 5009 tripper, at which point they came across the Plaintiff. [79] At that point about eight minutes had elapsed since they smelled something burning. [80] In cross-examination he stated he recorded he was sure it was eight minutes as he recorded it in his shift notes. [81] He further stated that the eight minutes were from 3.45 am to about 3.53 am. [82] On the assumption that the Plaintiff commenced fighting the fire at 3.35am he conceded that the time between 3.35am and 3.53am would be almost 20 minutes. [83] He also stated that at that point he did not don his self-rescuer at that time at there was no need at there was less than 50 parts and the fire was extinguished by the time he got there. [84]

    79. T 225.13-.18.

    80. T 225.20-.23.

    81. T 229.14-.20.

    82. T 232.07-.11.

    83. T 232.10-.15.

    84. T 229.01-.12.

48. Mr Chapman stated that he saw the Plaintiff standing in the gantry at the 5009 tripper. [85] He stated that he approached him, looked at the immediate vicinity and saw a bit of smoke coming from the 9 pulley bearing coupling. He saw the Plaintiff crouching down and hosing what he described as a lay flat return roller. [86] He said that he spoke to the Plaintiff who advised him that he was ok. [87] He stated that he observed the Plaintiff and described him as “working on, like, adrenalin”. However, he stated that he was able to communicate with and they had a bit of a conversation and he did not observe the Plaintiff to have any difficulty breathing and he observed his voice to be normal. [88] In his statement he stated that he did not observe the Plaintiff coughing or spluttering and he didn’t complain about his eyes burning at all or it being hard to talk as his throat was burning. [89]

    85. T 225.27-.28.

    86. T 225.36-.39.

    87. T 225.41-.48.

    88. T 225.50-226.12.

    89. Exhibit 3 at [39].

49. In cross-examination, Mr Chapman admitted that he observed the Plaintiff to be using two hoses to apply to various parts of the conveyor belt; one on the lay roller on top of the belt and another on the pulley bearing that was still smouldering smoke. [90] He admitted that the Plaintiff said to him “I got here and there was a big flame off the roller”, indicating the lay flat roller he was hosing and added “there was a lot of smoke coming off the roller.”[91] He further conceded that he would imagine it would be horrific fighting a fire [92] and that a fire in a coalmine underground would be a very serious matter of great concern to him because of the potential for a catastrophe and loss of life. [93] In re-examination he stated that he had an opportunity to converse face-to-face with the Plaintiff and observed his clothing to be dry. [94]

    90. T 232.26-.46.

    91. T 232.47-233.02 and Exhibit 3 at [37].

    92. T 233.04-.09.

    93. T 232.17-.24.

    94. T 234.40-.45. See also Exhibit 3 at [39].

50. Mr Chapman stated that he did not have any further dealings with the Plaintiff that day but after the Plaintiff had returned to work sometime after the incident they had a brief conversation in which he advised that he was ok. He stated that he had not seen him since that time before attending court. [95]

The Plaintiff’s Training and Approach to Fire on 5 August 2016

95. T 226.21-.26.

Self-Rescuer

51. The Plaintiff was asked why he didn’t apply the self-rescuer to his face after he observed the smoke and after he made the first phone call to the control room. He stated that the smoke was on the belt road not in the travelling road and they had always been told that there has to be a smoke-filled environment with multiple heating. He was then asked why he didn’t apply the self-rescuer after the second call he made to the control room when he decided to fight the fire. He stated that where the phone was compared to where he was going back to his machine was 10m and it would have taken him in that environment five minutes to try to put it on. At that point he described his eyes were burning and that he was coughing, dry retching and was panicking. [96] He further stated he thought that he had to deal with the fire straight away as he was always told he had ten minutes to get a fire under control and at that point it had been longer than ten minutes. [97]

    96. T 68.26-.33.

    97. T 68.47-.50.

52. In cross-examination the Plaintiff conceded that on two occasions on 5 August 2016 he entered the smoke without donning his self-rescuer. [98] It was put to him that when he spoke to Mr Williams he didn’t tell him that that he didn’t use the self-rescuer because he had been trained not to use it to fight a fire. He stated that he could not remember, however, he was told that it was not a piece of equipment to fight a fire. [99] The Plaintiff’s attention was then drawn to the contents what Mr Williams recorded the Plaintiff told him, being:-

I asked him if he considered activating his Self-Contained Self-Rescuer (all underground mine workers carry such equipment, which generates an air supply for a short period – usually between 20 and 40 minutes) for escape purposes.

• He stated that, whilst he had received training in use of the self-rescuer, he was also aware of times when workers had been criticised for using them… [100]

98. T 155.46-.50.

99. T 156.01-.15.

100. Exhibit D1, Tab 20 at 279.

53. The Plaintiff conceded that he could have put on his self-rescuer. [101] He did not accept that it takes a number of seconds to put it on, stating that he never put one on in a smoke filled environment and it was not something that you would do every day. [102] He stated he had been trained on the surface about self-rescuers in the day time and that he looked at them and spoke about them. [103] When it was put to him that it would not take very long at all, he stated that in the situation he was in, he was panicking and that with everything going on he did not know how long the fire fighting had gone for. [104]

    101. T 156.41-.43.

    102. T 157.12-.14; T 157.21-.22.

    103. T 157.16-.18.

    104. T 158.14-.17.

54. The Plaintiff conceded that if you used the self-rescuer flat out you could get 90 minutes use. [105] He conceded that whenever he was in smoke if he had his self-rescuer he would not have inhaled smoke. [106] The Plaintiff accepted that after assessing a fire and determining to fight, if you make progress but it takes longer than ten minutes then “you just keep at it”. [107] When it was put to him that there was no fixed ten minute period for fighting a fire, he stated that he didn’t understand the question. [108]

    105. T 159.38-.40.

    106. T 158.42-159.12.

    107. T 160.10-.20.

    108. T 160.22-.27.

55. The Plaintiff stated that when he commenced at the mine he had a two week induction on the surface going through training in relation to various hazards within the mine. [109] He was made to understand that fire in the mine could be catastrophic. [110] The Plaintiff stated that at induction one of the supervisors spoke about a fire at the Ulan colliery in the 80s and what can go wrong if there was a fire. He stated that they were taken to a location where a fire was still active underground and they were told that this was where the pit caught on fire and it had been sealed off. There steam was being emitted from the ground. [111] Subsequently operations were moved some 300 meters away from where the Plaintiff was working in 2011. [112] From 2011 to a year and a half prior to the incident in August 2016, the Plaintiff stated that he was trained by Mr Craddock. [113] Thereafter the Plaintiff described that they had persons on the crew training them, with the Deputy Glen Frost turning up on occasions with training packages in the form of the documents in Exhibit C. [114] These were acknowledged to be all the training documents maintained by the Defendant in relation to the Plaintiff. [115] The Plaintiff stated that for a period of time there was no designated trainer. [116]

    109. T 25.43-.46.

    110. T 27.07-.09.

    111. T 27.18-.41.

    112. T 27.43-.45.

    113. T 28.44-29.20.

    114. T 30.01-.17.

    115. T 30.21-31.09.

    116. T 30.21-.24.

56. The Plaintiff described being trained in respect of the use of a SSR-95. [117] He stated that they were told how to fit them and keep them on. He stated that there was one used in the training room but that they went through the procedures as to how you would you do it. However, prior to August 2016 he had not actually applied it to his face and breathed through it. [118] He was aware that it was housed in a stainless steel that you had to break, pull it out and then put goggles on, put a nose piece on and put it in your mouth before taking a few deep breaths. He stated that from memory and training you were not supposed to use them in what were low oxygen areas as they won’t work and they were also not used to fight fires. [119] Later in his evidence the Plaintiff said that he was told this by Mr Craddock on a training day at “Surfers.” The Plaintiff said that Mr Craddock said instead “you’ve got to follow the protocol, assess it, if you can do something about it, do something about it and call the control room, there’s like a management plan that they go off”. [120]

    117. T 65.05-.10.

    118. T 34.28-.40.

    119. T 34.15-.22.

    120. T 65.19-.42.

57. The Plaintiff’s attention was then drawn to a document titled “Ulan Underground Induction” dated 6 July 2012. [121] In answer to a question “If in an emergency there were signs of smoke, what would you do immediately?” the Plaintiff is recorded as having responded “Don your self-rescuer”. [122] In answer to a further question “Describe the procedure to use MSA/WR self-rescuer” the Plaintiff is recorded as responding, “Don your self-rescuer and head outbye. Insert mouthpiece in your mouth. Attach the nose clip.” [123] The Plaintiff’s answers in this regard appear to have been marked as correct by Mr Craddock. Based on these answers the Plaintiff conceded that he was given instructions to don his self-rescuer if there were “multiple heatings.” [124]

    121. Exhibit C at 51-7.

    122. Exhibit C at 53, Question 8.

    123. Exhibit C at 53, Question 9.

    124. T 67.20-.23.

58. The Plaintiff’s attention was drawn to a document titled “Means of Escape Familiarisation” dated 21 September 2012. [125] In answer to the following question, “Explain the procedure to withdraw following advice of an emergency situation in the mine” the Plaintiff is recorded as stating, “Place self-rescuer on & make way to cribroom. Use tram port. Notify control. Tarps 1–2–3.” [126] The Plaintiff’s answer also appears to have been marked as correct by Mr Craddock. The Plaintiff stated that he understood that he should use the self-rescuer device when he receives advice from a superior to withdraw from the mine. [127]

    125. Exhibit C at 31-3.

    126. Exhibit C at 31-2, Question 4.

    127. T 66.25-.27.

59. The Plaintiff’s attention was also drawn to a document titled “Fire, First Aid and Emergency Response – Refresher Assessment” dated 28 June 2013. [128] When asked, “What must you do if you discover a fire when a) Working alone?” the Plaintiff responded “Try to put fire out – Follow procedure.” [129] The Plaintiff stated that he didn’t insert the tick next to his answer on the aforesaid page. [130] It is not apparent who marked that answer however from the tick marking it can be inferred that it was marked as correct. The Plaintiff confirmed that his instructions were to assess the situation and if you can fight it you do. In making this decision he stated that you should make contact with control so they can get other people to come and help. [131] He stated that with his training he had been told that you’ve got ten minutes from when a fire starts and that if you haven’t got water on it you would not get it out. He stated that his understanding prior to August 2016 was that a fire had to be put out straight away otherwise if the fire got out of hand there was potential for others to be injured and for loss of the mine. [132] The assessment form also indicated that the Plaintiff was aware that when fighting a fire he should not enter a smoke filled room. [133]

    128. Exhibit C at 9-13.

    129. Exhibit C at 11, Question 12(a).

    130. T 31.32-.37.

    131. T 31.39-.45.

    132. T 32.08-31.

    133. Exhibit C at 11, Question 10.

60. The Plaintiff’s attention was also drawn to a document titled “Fire, First Aid and Emergency Response Refresher Assessment” dated 12 December 2014. [134] In answer to the question, “What must you do if you discover a fire when:- Working alone” the Plaintiff responded, “Assess fire if able to extinguished using fire fighting tools. If unable follow the emergency procedure & raise alarm.” [135] It also appears to have been marked as correct by Mr Craddock.

    134. Exhibit C at 20-5.

    135. Exhibit C at 23, Question 12.

61. The Plaintiff described that as the training he was given consistently throughout his time at Ulan prior to August 2016. [136]

    136. T 32.36-37.01.

62. The Plaintiff also described that as part of their training he tried on a Compressed Air Breathing Apparatus (CABA). This was a self-contained breathing apparatus containing an oxygen tank with full face mask. He stated that it had oxygen for an hour depending on how much you would be breathing. It was not supplied as part of an operator’s equipment however was located along the travelling road in the crib room and at various cut-throughs. The Plaintiff stated that his understanding was that they would be used in an emergency underground if instructed to put them on. [137] The Plaintiff completed a CABA assessment on 6 July 2012 [138] and indicated in answer to a question “What is the purpose of the CABA at Ulan Underground?” that it was to “Escape only.” [139] This appears to have been marked as correct by Assessor T O’Brien.

    137. T 34.42-35.30.

    138. Exhibit C at 77-81.

    139. Exhibit C at 80, Question 10.

63. The Plaintiff was not cross-examined as to the training that he received by reference to the documents in Exhibit C.

64. In cross-examination the Plaintiff conceded that that when he took the job at the Ulan colliery he knew one of the known risks about underground coal mining was a fire and explosion. He accepted when having his training and induction he understood why fire fighting procedures and coping with fires were included in the training. [140]

    140. T 131.45-132.19.

65. The Plaintiff was further asked about having had exposure to a major fire when he was at Bluescope. He conceded that he had when he was an apprentice. [141] In re-examination he stated that he was 300m away from that fire in the paint line and he was working on the kneeling line. He stated that he didn’t know there was a fire although smoke was visible, that they were told to evacuate and he was taken in a work truck off the plant. [142] Other than that he stated that he had no further involvement. [143]

    141. T 132.21-.40.

    142. T 179.25-.43.

    143. T 179.45-.46.

66. Mr Chapman gave evidence that when he started at the colliery he received training as to use of a self-rescuer, how to put it on, its duration, and what it actually does. He stated he would put the rescuer on if working alone and smoke was witnessed and if instructed by a supervisor. He described that if working alone but you had a hand held monitor and it reached 50 parts per million then you would don the self-rescuer. [144] He stated that that would be so even if not instructed by a superior or having encountered smoke. [145] Nonetheless, Mr Chapman conceded in cross-examination that the hand held monitor was not something he believed that the Plaintiff had with him at the fire although one was available to anybody who believed they need to take one into an environment they were working. [146] He accepted that he had not put on a self-rescuer underground. [147] He stated that in training it took a minute to put on. [148] Beyond that he stated that he had not participated in the Plaintiff’s induction or other training with him and his only knowledge was of the standard training that everybody should have received before they’re appointed to go underground. [149]

    144. T 226.41-.46.

    145. T 227.07-.09.

    146. T 233.41-234.03.

    147. T 227.11-.12; T 228.35-.37.

    148. T 227.18-.20.

    149. T 228.19-.33.

67. Mr Wilson had been employed by Ulan Coal Number 3 as a fitter since 2006. [150] When Mr Wilson commenced he stated that he received an induction that included safety training as to the use of a self-rescuer. [151] He was told to use it when underground when there were signs of smoke or when told to put it on by a senior person. [152] He stated that he had only used a self-rescuer in training and they were like a dummy that took about a minute to put into your mouth. [153] In cross-examination he stated that he was trained with a “decoy” which didn’t function. [154] He also conceded that he had nothing to do with the Plaintiff’s induction and he did not know what training he was given by other workers at Ulan. [155] Whilst he understood as part of his training that a fire underground was a serious matter, he himself had never in the time that he worked underground experienced a fire down in a mine. [156]

    150. T 214.11-.18.

    151. T 214.28-.42.

    152. T 214.44-.45.

    153. T 214.47-215.02.

    154. T 218.33-.36.

    155. T 217.35-.47.

    156. T 217.49-218.15.

68. In re-examination Mr Wilson stated that the practice self-rescuers did not have the internals of a normal one so you could practice putting it into your mouth but not breathing with it. [157] He stated that if he ever encountered smoke or underground fire he would put on the self-rescuer that he used as part of his protective equipment. [158] In further cross-examination he conceded that he had never put on a self-rescuer whilst underground and the environmental conditions would be completely different. This could be so as he would be in the dark, there’d be a lot of noise, there might be smoke and he might be anxious or concerned if there was smoke; all of which could affect how he would put on the self-rescuer. [159]

    157. T 219.20-.29.

    158. T 220.22-.25.

    159. T 220.41-221.14.

Lanyard

69. In evidence in chief the Plaintiff stated he didn’t turn the conveyor off with coal because “it would have just gone into the coal and just taken on.” He was aware that there was a lanyard that runs along the conveyor that you could activate to stop the conveyor. [160]

    160. T 72.05-.20.

70. In cross-examination the Plaintiff did not accept that if the fire was in the vicinity of a moving piece of machinery that called for the stopping of the belt. [161] Whilst he accepted that it would have stopped the friction he stated there was still a fire due to heat and he did not know that whether the coal was on fire. [162] He rejected the suggestion that he knew he should have stopped the belt. [163]

    161. T 153.44-.47.

    162. T 154.08-.13.

    163. T 155.03-.04.

71. In his time as a coal miner the Plaintiff stated he had not pulled the lanyard nor had he seen it being done. In training he stated it had been spoken about. [164] He said he was always told never to stop the belt when there was because it means you have fuel stating, “You've got a heat, you've got a fire, you've got oxygen.” [165]

    164. T 72.17-.24.

    165. T 70.23-.25.

72. Mr Chapman gave evidence of being aware of the lanyard that runs the entire length of the belt. He stated he has never had an occasion to use it however if he were to find an issue with the belt system, such as a build-up of material under a belt, a faulty roller or a fire, then the lanyard was to be pulled to stop the belt. [166] In cross-examination Mr Chapman conceded that he in fact stopped the belt on the morning of the incident to take away the heat source from the fire after the fire was out. [167] He further conceded that if there was a significant fire beneath the conveyor and the conveyor was stopped with coal (therefore stationery above the fire) that could in fact cause the fire to become more significant with the coal combusting if the fire was not extinguished. [168]

    166. T 227.26-.45.

    167. T 227.49-228.11; Exhibit 3 at [38].

    168. T 234.28-.36.

Approach on the Inbye Side

73. In evidence in chief the Plaintiff conceded approaching the fire on the inbye side. He stated that he did this because he was told the fire was in the cut-through and that is why he went to the cut-through. He stated that he then turned around because the bulk of the smoke was coming towards him. [169]

    169. T 74.14-.20.

74. In cross-examination the Plaintiff’s attention was drawn to Dr Allnutt’s report of 26 May 2020 where it was recorded:

He [the Plaintiff] said initially he was on the wrong side of the fire, which increased the risk of death. He eventually found the fire and could get to the right side of it but said in fighting the fire “I’ve never been so scared in my life.” [170]

170. Exhibit D1, Tab 8 at 74.

75. It was put to the Plaintiff that when he saw Dr Allnutt he knew what Professor Hebblewhite had said about his actions in fighting the fire. He stated that he hadn’t read Professor Hebblewhite’s report. [171]

Aftermath

171. T 161.03-.22.

The Plaintiff

76. After the incident the Plaintiff stated that he was taken to the first-aid station. He stated that his throat was burning and he was vomiting. He was short of breath and very weak in his legs and couldn’t walk by himself. He stated that he remained there until around 6 o’clock when ambulance conveyed him to the hospital. At that point he was given oxygen. [172] Thereafter he was conveyed to the Gulgong Multi-Purpose Service (Gulgong). At Gulgong he was given oxygen and a vomit bag as he was vomiting. He stated he was again short of breath, his eyes were sore and he was really cold because he was wet from hosing himself down underground. At that point he still had his work gear on. [173] The Plaintiff stated that his clothes and car were brought to him at Gulgong. The Plaintiff stated that he had a shower and then changed his clothes. [174]

    172. T 74.31-75.02.

    173. T 75.20-.28.

    174. T 75.30-.37.

77. In cross-examination it was put to the Plaintiff that before he left Gulgong he was given breakfast which he kept down. He stated that he could not remember eating breakfast, only water, which he vomited up. It was put to him that he had a cough but was not bringing anything up. He stated that he could not remember but was coughing into a bag. He did not recall saying that he felt fine and that he was keen to get on the road home. [175]

    175. T 137.48-138.15.

78. Thereafter he took himself to Mudgee District Hospital and had some x-rays on his chest. He stated that he left Mudgee Hospital at around 10 o’clock to drive back to Wollongong. En route to Wollongong he described his chest as being really tight, that he was coughing and his eyes were still burning. He stated that he felt terrible about what happened at work. [176] When he arrived home he briefly spoke with his wife about the events and subsequently went to see Dr Casey as his regular GP was not in that day. [177] Dr Casey examined him but the Plaintiff could not recall whether he provided any medications or referrals to other medical practitioners. [178]

    176. T 75.39-76.18.

    177. T 76.24-.29.

    178. T 77.01-.06.

79. The Plaintiff was subsequently referred to a respiratory specialist Dr Moses who he recalled seeing in September 2016 and August 2017. [179] He conceded not seeing a respiratory physician for any advice or treatment after seeing Dr Moses in August 2017. [180]

    179. T 166.45-167.25.

    180. T 167.27-.29.

Ambulance

80. Following being brought to the surface, the Plaintiff was treated by Ambulance who arrived at the scene at 5.24am. The case description recorded:-

O/A THIS PT SITTING ON A CHAIR C/O SOB. PT COAL MINER WAS UNDERGROUND WORKING A CONVEYOR BELT. STATES FIRE WAS CAUSED BY GREASE FROM A COLLAPSED BEARING ANDTHE [sic] BELT IGNITING. PT SOOT ALL OVER BODY STATES COULDN’T SEE AS THE SMOKE WAS THICK AND WAS NOT WEARING A RESPIRATOR. STATES HAS BEEN VOMITING UP BLACK BIAL. O/E 43 Y/O MALE SOB, CHEST CLEAR, NSR. O2 RX VIA NRB. [181]

181. Exhibit D1, Tab 10 at 87.

81. Paramedics recorded that on examination the Plaintiff had a productive cough, black bile, dizziness and shortness of breath. Oxygen therapy from a non-re-breather mask was given for 15 minutes. Although the Plaintiff’s appearance was observed to be calm and quiet, his blood pressure at 5.32am was 150/95 dropping to 120/95 at 6.05am. He was there after taken to Gulgong. [182]

    182. Exhibit D1, Tab 10 at 87-9.

Gulgong Multi-Purpose Service

82. The Plaintiff arrived at the Gulgong at 6.06am and was registered in the emergency department at 6.10am. Additional presenting information was recorded at triage as follows:-

BIBA was working underground at the mine when conveyor belt caught fire emiting [sic] acrid thick smoke, patient did not have respirator on and was inhaling the smoke for about ten minutes before he was able to get fresh air. Oxygen given at the scene, O/A no respiratory distress patient covered in black soot, obs BTF oxygen via NRB continued, chest bilateral equal breath sounds. D/W DR Alseneid to remain on high flow oxygen and he will review the patient. [183]

691. Overall, Mr Bass opined that the Plaintiff was employable and some suitable positions were noted, as outlined above. [909] I accept this opinion which was unchallenged. No argument was presented by the Plaintiff that the types of employment would not be open to a person in his position following finalisation of this matter. I accept that he will not be able to undertake underground mining activities in the future but do not accept that he will not be able to operate plant equipment at ground level.

     909. Exhibit D1, Tab 44 at 871.

692. Consistent with my findings as to the future, the agreed pre accident earnings, the positions in the Bass report, doing the best I can I would estimate his loss at an average of $400 net a week which for 20 years (666.4 multiplier) comes to a figure of $266,560. Less 20% for vicissitudes, that figure comes to $213,248.

693. To that figure I would add loss of superannuation in the sum of 12% being an amount of $25,589.76. This figure accords with the rate allowed in the Vincent Report.

694. In total the Plaintiff’s award will be as follows:-

1. Non-Economic Loss            $ 138,911.00

2. Past Out of Pocket Expenses (agreed)    $ 16,189.22

3. Future Out of Pocket Expenses      $ 18,000.00

4. Past Economic Loss            $ 185,277.90

5. Past Loss of Superannuation         $ 16,675.01

6. Future Economic Loss            $ 213,248.00

7. Future Loss of Superannuation      $ 25,589.76

697. This comes to a total of $613,890.89.

698. In addition the Plaintiff would be entitled to a component for Fox v Wood. [910] The Defendant indicated a credit would be sought for workers’ compensation payments. [911] I will, in the circumstances, defer entry of final orders to enable the parties to check my calculations and advise of any outstanding amounts and proposed orders as to costs.

     910. (1981) 148 CLR 438.

     911. Amended Defence at [18].

ORDERS

699. Accordingly, I make the following orders:-

1. There will be a verdict and judgment in favour of the Plaintiff in an amount to be calculated.

2. I defer entry of final orders to enable the parties to confer, check my calculations and advise of any outstanding figures, with a view to presenting proposed consent orders that accord with this judgment and any agreement as to costs within 14 days.

3. Parties have liberty to lodge with my Associate in Chambers any agreed Consent Orders.

4. In the event of any disagreement, the parties are to:

1. Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days.

2. Submit to my Associate within the period referred to in (4)(a) above their proposed orders, and any documents and written submissions proposed to be relied upon.

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Endnotes

Decision last updated: 09 November 2020